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EXHIBIT 2.3
COMPANY VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
May __, 2001, among [Saturn], a Delaware corporation ("PARENT"), and the
undersigned shareholder and/or option holder (the "SHAREHOLDER") of [Jupiter], a
Georgia corporation (the "COMPANY").
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have
entered into an Agreement and Plan of Merger and Reorganization (the "MERGER
AGREEMENT"), which provides for the merger (the "MERGER") of a wholly-owned
subsidiary of Parent ("MERGER SUB") with and into the Company. Pursuant to the
Merger, all outstanding capital stock of the Company shall be converted into the
right to receive common stock of Parent, as set forth in the Merger Agreement;
and
B. Shareholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of
such number of shares of the outstanding capital stock of the Company and
shares subject to outstanding options and warrants as is indicated on the
signature page of this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Merger Agreement. For purposes
of this Agreement:
(a) "EXPIRATION DATE" shall mean the earlier to occur of
(i) such date and time as the Merger Agreement shall have been terminated
pursuant to Article VII thereof, (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger
Agreement or (iii) the date the Board of Directors of the Company withdraws its
recommendation in favor of the Merger.
(b) "PERSON" shall mean any (i) individual, (ii)
corporation, limited liability company, partnership or other entity or (iii)
governmental authority.
(c) "SHARES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) beneficially owned
by Shareholder as of the date of this Agreement and (ii) all additional
securities of the Company (including all additional shares of Company Common
Stock and all additional options, warrants and other rights to acquire shares of
Company Common Stock) of which Shareholder beneficial acquires ownership during
the period from the date of this Agreement through the Expiration Date.
(d) "TRANSFER." A Person shall be deemed to have effected
a "TRANSFER" of a security if such person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security or (ii) enters into an
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agreement or commitment providing for the sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, except as may be required by court order or
operation of law, Shareholder shall not cause or permit any Transfer of any of
the Shares to be effected unless each Person to which such Shares or any
interest in any of such Shares is or may be transferred shall have (i) executed
a counterpart of this Voting Agreement and a proxy in the form attached hereto
and (ii) agreed to hold such Shares or interest in such Shares subject to all of
the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Shareholder agrees that,
during the period from the date of this Agreement through the Expiration Date,
Shareholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Shareholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the shareholders
of the Company called, and at every adjournment thereof, and on every action or
approval by written consent of the shareholders of the Company, Shareholder (in
his or her capacity as such) shall cause the Shares to be voted (to the extent
such Shares have voting rights and are entitled to vote thereon) (i) in favor of
adoption and approval of the Merger Agreement and approval of the Merger, (ii)
in favor of any matter that could reasonably be expected to facilitate the
Merger, (iii) against any Acquisition Proposal and (iv) against any matter that
could reasonably be expected to facilitate any Acquisition Proposal.
Notwithstanding the foregoing, and notwithstanding any other provision of this
Agreement, nothing in this Agreement shall limit or restrict Shareholder from
acting in Shareholder's capacity as a director or officer of Company (it being
understood that this Agreement shall apply to Shareholder solely in
Shareholder's capacity as a shareholder of Company) or voting in Shareholder's
sole discretion on any matter other than those matters referred to in the
foregoing clauses (i), (ii), (iii) and (iv) of this Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Parent a proxy in the form attached
hereto as Exhibit A (the "PROXY"), which shall be irrevocable to the fullest
extent permissible by law, with respect to the Shares.
5. Representations and Warranties of the Shareholder. Shareholder
(i) is the beneficial owner of the shares of Company Common Stock and the
options and warrants to purchase shares of Common Stock of the Company indicated
on the final page of this Agreement, free and clear of any liens, claims,
options, rights of first refusal, co-sale rights, charges or other encumbrances
that, in each case, would deprive Parent of the benefits of this Agreement, (ii)
does not beneficially own any securities of the Company other than the shares of
Company Common Stock and options and warrants to purchase shares of Common Stock
of the Company indicated on the final page of this Agreement and (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.
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6. Legending of Shares. If so requested by Parent, Shareholder
agrees that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy. Subject to the terms of Section 2 hereof,
Shareholder agrees that Shareholder shall not Transfer the Shares without first
having the aforementioned legend affixed to the certificates representing the
Shares.
7. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
8. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Parent at law or in equity.
(e) Notices. All notices and other communications
pursuant to this Agreement shall be in writing and deemed to be sufficient if
contained in a written instrument and shall be deemed given if delivered
personally, telecopied, sent by nationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent: [Saturn]
0000 X. Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
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With copies to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Shareholder: To the address for notice set forth
on the signature page hereof.
With a copy to: Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: A. Xxxxx Xxxxxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(f) Governing Law. Except to the extent mandatorily
governed by the laws of the State of Georgia, this Agreement shall be governed
by the laws of the State of Delaware, without giving effect to the conflicts of
law principles thereof.
(g) Entire Agreement. This Agreement and the Proxy
contain the entire understanding of the parties in respect of the subject matter
hereof, and supersede all prior negotiations and understandings between the
parties with respect to such subject matter.
(h) Effect of Headings. The section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(i) Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
(j) Permitted Activities. Nothing in this Agreement shall
be construed to require Shareholder to exercise any option, warrant or other
right to acquire Company Common Stock, and nothing in this Agreement shall be
construed to prohibit Shareholder from (i) engaging in customary sales of Shares
consistent with Shareholder's past sales (but in no event aggregating more than
15% of Shareholder's total Shares) or (ii) engaging in a net exercise of any
option, warrant or other right to acquire Company Common Stock (if the
contractual terms of such option, warrant, or other right currently permit such
a net exercise).
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
[SATURN] SHAREHOLDER
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Signature Signature
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Print Name Print Name
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Print Title Print Title
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Print Address
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Print Telephone
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Print Facsimile No.
Shares beneficially owned:
_______shares of Company Common Stock
_______shares of Company Common Stock
issuable upon exercise of
outstanding options or warrants
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[SIGNATURE PAGE TO COMPANY VOTING AGREEMENT]
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IRREVOCABLE PROXY
The undersigned shareholder of [Jupiter], a Georgia corporation (the
"COMPANY"), hereby irrevocably (to the fullest extent permitted by law) appoints
the members on the Board of Directors of [Saturn], a Delaware corporation
("PARENT"), and each of them, as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of the
Company that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "SHARES") in
accordance with the terms of this Proxy. The Shares beneficially owned by the
undersigned shareholder of the Company as of the date of this Proxy are listed
on the final page of this Proxy. Upon the undersigned's execution of this Proxy,
any and all prior proxies given by the undersigned with respect to any Shares
are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares on any matters covered hereby until after the
Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Parent and the undersigned
shareholder (the "VOTING AGREEMENT"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger and Reorganization (the
"MERGER AGREEMENT"), among Parent, Jupiter Acquisition Corp., a Georgia
corporation and a wholly-owned subsidiary of Parent ("MERGER SUB"), and the
Company. The Merger Agreement provides for the merger of Merger Sub with and
into the Company in accordance with its terms (the "MERGER"). As used herein,
the term "EXPIRATION DATE" shall mean the earlier to occur of (i) such date and
time as the Merger Agreement shall have been validly terminated pursuant to
Article VII thereof, (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement or
(iii) the date the Board of Directors of the Company withdraws its
recommendation in favor of the Merger.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of shareholders
of the Company and in every written consent in lieu of such meeting (i) in favor
of approval of the Merger Agreement and the Merger, (ii) in favor of any matter
that could reasonably be expected to facilitate the Merger, (iii) against any
Acquisition Proposal (as defined in the Merger Agreement) and (iv) against any
matter that could reasonably be expected to facilitate any Acquisition Proposal.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned shareholder may vote,
and grant proxies with respect to, the Shares on all other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: May __, 2001
Signature of Shareholder: ___________________________
Print Name of Shareholder: __________________________
Shares beneficially owned:
__________ shares of Company Common Stock
__________ shares of the Company Common
Stock issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
